The Women's Protection Bill (Urdu: خواتین کے تحفظ کے بل) which was passed by the National Assembly of Pakistan on 15 November 2006 is an attempt to amend the heavily criticised 1979 Hudood Ordinance laws which govern the punishment for rape and adultery in Pakistan. Critics of the Hudood Ordinance alleged that it made it exceptionally difficult and dangerous to prove an allegation of rape, and thousands of women had been imprisoned as a result of the bill. The bill returned a number of offences from the Zina Ordinance to the Pakistan Penal Code, where they had been before 1979, and created an entirely new set of procedures governing the prosecution of the offences of adultery and fornication, whipping and amputation were removed as punishments. The law meant women would not be jailed if they were unable to prove rape, and allows rape to be proved on grounds other than witnesses, such as forensics and DNA evidence.
Contents
The Bill remains controversial amongst many liberals and moderates in Pakistan who argue it does not go far enough as stoning to death is still theoretically on a punishment, though not implemented by the courts, the liberals argue it should be removed entirely. However, some religious parties have called the bill Un-Islamic and by extension unconstitutional, however the Supreme Court of Pakistan has not overturned the Bill on the grounds that it violates the Islamic provisions in Pakistan's constitution, hence stands to the present day. Pakistan's largest province, Punjab passed another women's bill which instituted further reforms this is pending before the courts on grounds of unconstitutionality.
Impact
The Hudood Ordinances, enacted by military ruler Zia ul-Haq in 1979, criminalise adultery and non-marital consensual sex. They also made a rape victim liable to prosecution for adultery if she cannot produce four male witnesses to the assault.
A 2003 report by the National Commission on Status of Women (NCSW) estimated "80% of women" were incarcerated because "they had failed to prove rape charges and were consequently convicted of adultery." According to legal scholar Martin Lau
While it was easy to file a case against a woman accusing her of adultery, the Zina Ordinance made it very difficult for a woman to obtain bail pending trial. Worse, in actual practice, the vast majority of accused women were found guilty by the trial court only to be acquitted on appeal to the Federal Shariat Court. By then they had spent many years in jail, were ostracized by their families, and had become social outcasts.
Attention to the Ordinance and suggestions for revising it were given by a number of government appointed commissions, a televised several weeks-long-televised debate on the subject of "No debate on Hudood Allah (Allah's laws as prescribed in Quran and Sunnah)-is the Hudood Ordinance (Man's interpretation of Allah's law) Islamic?" on Geo television channel, and a 2005 University of Karachi Dept of Public Administration workshop.
The chief architects of the Women's Protection Bill are reported to be former Attorney General Makhdoom Ali Khan who was responsible for it taking legal shape and the Chairman of the Council of Islamic Ideology Muhammad Khalid Masud.
The new Women's Protection Bill brings rape under the Pakistan Penal Code, which is based on civil law, not Sharia (Islamic law). The Bill removes the right of police to detain people suspected of having sex outside of marriage, instead requiring a formal accusation in court. Under the changes, adultery and non-marital consensual sex is still an offence but now judges would be allowed to try rape cases in criminal rather than Islamic courts. That does away with the need for the four witnesses and allows convictions to be made on the basis of forensic and circumstantial evidence.
The amendments change the punishment for someone convicted of having consensual sex outside marriage to imprisonment of up to five years and a fine of Rs 10,000. Rape would be punishable with 10 to 25 years of imprisonment but with death or life imprisonment if committed by two or more persons together, while adultery would remain under the Hudood ordinance and is punishable with stoning to death. A complaint of adultery must be made to a judge with at least four witnesses testifying under oath that they witnessed the act of penetration. It is the change in the punishment for fornication and rape which is the major source of controversy.
The Bill also outlaws statutory rape i.e. sex with girls under the age of 16.
Controversy
Under the Hudood Ordinance, women were routinely jailed for adultery on flimsy evidence, often when a former husband refused to recognise a divorce. It is alleged that the legislation led to thousands of women being imprisoned without being proved whether they were actually guilty. This risk of imprisonment, it is contended, has kept many women from trying to bring their attackers to justice. The Commission of Inquiry on Women, headed by Justice Nasir Aslam Zahid, had recommended the repeal of the Hudood Ordinances in 1997, as did the National Commission on the Status of Women in 2002. The Women's Protection Bill is intended to amend Hudood Ordinance to address these issues.
On the other hand, the bill has been fiercely criticised by Islamist groups in Pakistan, and religious parties boycotted the parliamentary vote on the bill on the basis that it was inaugurating an era of "free sex." The Religious political parties argue that the bill goes against articles 2a and 227 of the Constitution of Pakistan, which state respectively that "Islam will be the state religion" and "No laws will be passed which are repugnant to the Quran and sunnah." Ayman al-Zawahiri of al-Qaeda warned Pakistanis in a video released in April 2006 that the bill was an attempts to erode Pakistan's adultery law and part of a "Crusader" plot to portray Islam as a religion of "enlightened moderation".
The government has called the legislation "historic" and says that it does not go against the tenets of Islam. (The bill does not eliminate the Hudood punishment of stoning for adultery.) Liberal politicians and women's rights activists have welcomed the reforms as progress – but say they do not go far enough.